Employer ordered to stand trial over anti-Arab bias

By Deborah Elkins
The Daily Record Newswire
COLUMBIA, SC -- Lawyers looking for a catalogue of comments offensive to Arab-Americans in the workplace can consult a new source: a federal appeals court decision that says it’s up to a jury to decide whether remarks such as “camel people” can create a hostile work environment.

After a lengthy recitation of alleged remarks endured by a bookkeeper for a property management company over a four-year period, the 4th U.S. Circuit Court of Appeals reversed summary judgment for the employer and sent the plaintiff’s job bias claims back for trial in Alexandria federal court.

Alexandria U.S. District Judge Gerald Bruce Lee’s decision had identified a single comment — the alleged “camel people” remark – as racially derogatory.

But appeals court Judge Roger Gregory said the summary judgment record showed “a history of discomfort, distrust and disparaging treatment directed” at the plaintiff, and “demonstrated a discriminatory animus” on the part of her boss.

Plaintiff Monica Guessous is an Arab-American Muslim woman from Morocco who worked for Fairview Property Investments LLC from 2007 to 2013, when she was fired from her job as a bookkeeping assistant. She
was terminated by her direct supervisor, Greg Washenko, who became Fairview’s chief financial officer in 2008.

In deposition testimony on her complaint alleging violations of Title VII and 42 U.S.C. § 1981, Guessous recounted numerous allegations of mistreatment beginning with her first encounter with Washenko at a meet-and-greet event.

Guessous alleged Washenko, upon hearing that she was Middle Eastern, said that in a previous job he had worked with “a bunch of Middle Easterners and they are a bunch of crooks,” who “will stop at nothing to screw you.”

“From that point forward, Washenko exhibited a habit of discussing Moroccans, Muslims and Middle Easterners in disparaging and offensive ways,” Gregory wrote in Guessous v. Fairview Property Investments LLC.

These alleged incidents included Washenko, after reading about terrorist attacks in 2010, asking Guessous, “Why do Muslims hate America?”; commenting that “not all Muslims are terrorists, but most are”; asking Guessous, a Moroccan, to explain “this whole suicide bomber thing” by “Muslim Palestinian terrorists,” as well as “Muslims killing people” in Egypt and Muamar Gaddafi’s rule in Libya.

Washenko also allegedly asked Guessous to act as a translator for a Farsi-speaking Persian Iranian, saying, “So you don’t speak Iranian? Shouldn’t there be some secret language that you all understand?”

The supervisor also allegedly made offensive comments about “a Moroccan driver” and “Moroccan time” and told people that his “Muslim employee,” Guessous, tried to poison him after they had shared a lunch at a Taco Bell.

Guessous alleged that when she tried to show her boss pictures a friend had sent from Dubai, he responded that a friend of his had lived in Dubai and told him that, despite all the modern buildings, “they are just a bunch of camel people.”

Matters came to a head after Guessous returned from a maternity leave. She complained to Washenko that she had not been reassigned her former duties and also confronted him about his past discriminatory and offensive conduct, according to her suit.

Approximately 75 minutes after that conversation, the company president sent two emails to other employers asking if they were hiring and could use one of Fairview’s employees for whom they had insufficient work.

The timing of the emails supported Guessous’ claim that the decision to terminate her was made after she complained about the offensive comments, and the lack of work cited for her termination three months later was a pretext, according to the 4th Circuit panel.

Gregory said it was unclear how the district court could conclude “camel people” was racially derogatory, while Washenko’s alleged additional references to and questions about Islam and Moroccan culture were distasteful but not attributable to her Arab ethnicity.

It “is beyond euphemistic to characterize them as references and inquiries,” as “many of these comments were either clearly or conceivably racial,” Gregory wrote.

“Washenko regularly interchanged his harassment of Guessous, referring to Muslims, Moroccans, Palestinians, Egyptians, Middle Easterners and North Africans. A jury could reasonably conclude that Washenko bore animus towards all Middle Eastern people …,” Gregory continued.

“We hold only that it would be possible for a jury to interpret many of Washenko’s comments as based on race in addition to other forms of animus,” the panel said.

To get past summary judgment, Guessous only had to show that her protected activity was a but-for cause of her termination, not that it was the sole cause, the panel said.

A reasonable jury could “easily conclude” that the termination decision was made only 75 minutes after Guessous complained to Washenko about past comments and treatment, and that it was therefore motivated by the complaint itself, the appeals court said.

“Given the undisputed evidence that Guessous’ duties were absorbed by non-Arab, non-Muslim employees, Guessous has established a prima facie case of discriminatory discharge,” Gregory wrote.

In considering the time range covered by Guessous’ allegations, the 4th Circuit panel also joined four other courts of appeal to hold that a “continuing violation” approach applies to § 1981 hostile work environment claims, just as it does to such claims under Title VII.